In Bankruptcy, What is a 341 Meeting of Creditors?

 

What Does the 341 Meeting of Creditors Entail?

Transcript:

Hi, Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Today I want to talk a little bit about the 341 meeting of creditors. You may hear it just referred to as simply as your court date, 341 meeting, or a meeting of creditors or all of it together.

It’s all the same thing. What it is is a chance for your creditors to meet with you down at the courthouse and ask you questions under oath. I would say that a typical 341 meeting of creditors has zero creditors present.

It’s extremely unusual for the creditors to show up. In less than 1% of cases, typically, a creditor will actually show up. When they do, their questions are usually fairly benign. They’re not very hard-hitting questions.

At the 341 meeting, what usually happens is it will be me, your attorney, your bankruptcy trustee, and you.

What Happens at the 341 Meeting?

Your trustee is going to ask you a series of questions to determine that you’ve complied with all the filing requirements for the bankruptcy, that we filled out all the paperwork correctly and submitted the supporting documentation, and to see whether or not there is any assets or other types of property that you may own that you unintentionally left off of your bankruptcy paperwork. If there is anything to be amended, they’ll make note of that.

These meetings typically last about 4 or 5 minutes. These can get complicated.

 

341 meeting, las vegas, nevada

 

If creditors do show up, you may be required to spend a little bit more time than usual answering the questions. For the vast majority of people, this is a very simple, straightforward meeting. It’s very summary in nature.

You’re going to be asking questions like, “Did you review all the paper with your attorney? Did you sign it? Is everything truthful and accurate?” Those are the types of questions that you can expect receiving from the bankruptcy trustee.

If you have any questions about this meeting, or if you’re nervous about this, don’t be. There is a judge in your case.

You will not be meeting the judge, the black robed figure with the gavel in the scary courtroom is not where this is going to take place.

It’s in a small side room, typically, at the bankruptcy courthouse with a trustee who is another court official, usually another attorney, like I said, who has been assigned to your case to determine that you’ve fulfilled all the filing requirements.

Hope to hear from you soon.

If you have any questions about this, I hope that this video puts you at ease and lets you know that this meeting is nothing to fear as long as you tell the truth.

I look forward to hearing from you soon, and if you have an upcoming 341, seeing you there soon.

 

Las Vegas Casino host employee non-compete

Podcast Preview: Las Vegas Casino Workers Need to Know About the New Law for Non-Compete Contracts

Rising podcast star, Greg Hamblin, hosted one of our partners, Jared Richards, on the latest episode of his podcastOn The Docket.

Thank you for all the wonderful feedback as well!

For today’s episode, I would like to call your attention to this article in the Las Vegas Sun describing the recent opinion from the Nevada Supreme court, Golden Road Motor Inn v. Islam (The last name of the employee litigating).

A quick summary: The Nevada Supreme Court held that non-compete provisions in employment contracts must be reasonable, or they are invalid.

What does this mean for you? If you are working in Nevada and signed a non-compete agreement, watch this short clip.

The segment begins just as Mr. Richards is describing the facts from Golden Road Motor Inn..

 

 

Transcript:

Jared Richards:  The non-compete agreement was too broad. Traditionally, trial courts have the ability to take a non-compete agreement, and it’s called blue pencil, they can amend, if they find something that’s unreasonable because non-competes can’t be so unreasonable as to really bar somebody from gainful employment and I think this one barred her from working for any casino within 150 miles.

Greg: Oh, wow.

Jared Richards: That destroys her employment opportunities. 150 miles, that’s a long distance for somebody who I think was a janitor or a menial worker. Normally, a court would just simply say, “We are going to bar you from performing … We’re going to change the contract to bar you from performing this specific service that you were doing for your old employer and other employers,” so if you were a janitor there, you could still be a server, you could still be anything else.

But the Nevada Supreme Court moved away from the blue line principle and just simply said, “Guys, it’s in a valid contract, and that’s it,” which throws into question a huge number of contracts in the state of Nevada because so many people will take slightly over-broad, unreasonable positions with the hope and understanding that the trial court, if it’s found to be unreasonable is going to reduce it to the point of being reasonable.

Brian: Right, okay.

Jared Richards: Now, instead of reducing to the point of being reasonable-

Brian: They’re just tossing it out.

Jared Richards: They’re just tossing, which means, if you’ve put, and the restrictions generally are, they look at the type of work you’re doing and whether you could easily switch to another type of work. They look at the distance that you’re being restricted and they look at the time on which you’re being restricted. Now, a lot of employers are asking whether or not their contracts are valid at all.

Brian: Can I ask about casino hosts in Las Vegas in particular? Very competitive industry. The high end hotels – I used to work in casino – the hosts move in between hotels a lot.

Jared Richards: They don’t want their high rollers running with the hosts.

Brian: But any of these host contracts valid?

Jared Richards: Well, I don’t know. I mean, it would depend on the-

Brian: If they had one of these non-competes in them?

Jared Richards: No, it would depend. Now, I think that if you were to say, “You cannot work as a … If you come and work for us a host, you can’t work as a host, that very specific field, in the Las Vegas area, or within a 5 mile radius of our casino, or 10 mile radius of our casino” you might be able to get away with that, a court might look, for a year. A court might look at that and say, “Well, that’s reasonable.” The whole thing of 5 years or 150 miles, or just you’re not able to-

Brian: Or working at a casino.

Jared Richards: Right, or working for a competitor at all.

Brian: Right.

Jared Richards: Those things, now are extremely risky and if you have any of those in your contracts, your contracts may be invalid, or at least the non-compete provisions.

Brian: Right. Do you think that the casinos should rewrite the contracts or just hope that they don’t get sued.

Jared Richards: No. It’s not that they’ll get dues. It’s that they can’t enforce them. They’re never going to get sued for the non-compete. I won’t say never, but it’s when the casino tries to enforce the non-compete that everyone can just thumb their nose at the casino saying, “This is not a valid portion of your contract.”

If the casino really wants that protection, they need to now reconsider, they need to narrow the restriction and yeah, they’ll need people to re-sign.

 

back to school, school bus, school zone, las vegas, nevada

It’s Back to School Time..Now Do I Have to Stop for That School Bus?

It’s almost back to school time which means, sometime in the next couple weeks, many parents out in the Valley will be going through this yearly inquiry:

“How fast may1)you all speak with impeccable grammar from what I hear I drive in this school zone?”

“Do I have to stop for this school bus if there is a median between us?”

“Do I have to stop for the crossing guard?”

Let this be the year we all know for sure! Onward and upward.

Hopefully, the answers I found are helpful. Worst case, you can notate the relevant statute in your ithing just in case you need to reference it during a traffic stop.

May You Pass a School Bus?

As loyal2)by no means a requirement! Rick Hasen is a great writer. readers of the Clear Counsel Legal Blog, you know that we live in a (newly modified!) Dillon rule state, meaning that the state, in most cases, must expressly assign power to legislate to a locality.3)Small footnoted tangent: Have you seen (this is rhetorical, I know you’re busy) what the legislature did to our Dillon rule common law last session? First, I’ll define the terms. Justice Dillon (of Iowa) wrote a common law doctrine in the 19th Century adopted by Nevada courts. The Dillon Rule, as it’s known, states that localities do not have the authority to legislate unless said authority is expressly granted by the state government. Last legislative session, the state government made a significant amendment. Check out Section 5 of new bill: “As a general rule on local governmental power, Dillon’s Rule serves an important function in defining the powers of county government and remains a vital component of Nevada law. However, with regard to matters of local concern, a strict interpretation and application of Dillon’s Rule unnecessarily restricts a board of county commissioners from taking appropriate actions that are necessary or proper to address matters of local concern for the effective operation of county government and thereby impedes the board from responding to and serving the needs of local citizens diligently, decisively and effectively.”(emphasis added). If you, like me, are tired of the “tyranny of the north” as I like to call it, this is a great result! Clark County brings in almost all of the state’s revenue, and in turn, should be given the authority to pass the laws necessary to improve our lovely community without folks from Elko stopping us. This was impossible under the old Dillon Rule. Hope is on the way my friends..Hopefully my friends in Clark County realize what we have here..4)After some cursory research, this may be the first time the Dillon Rule (in about 150 years) that it has been codified by a state. Pretty interesting in terms of history of law.

Therefore, most of the applicable laws with regards to school zones come from the state government, in particular Chapter 484B Rules of the Road. This is where we will begin our examination.

NRS 484B.353  Overtaking and passing school bus: Duties of driver; exceptions; penalties.

      1.  Except as otherwise provided in subsection 2, the driver of any vehicle, when meeting or overtaking, from either direction, any school bus, equipped with signs and signals required by law, which has stopped to receive or discharge any pupil and is displaying a flashing red light signal visible from the front and rear, shall bring the vehicle to an immediate stop and shall not attempt to overtake or proceed past the school bus until the flashing red signal ceases operation.

      2.  The driver of a vehicle upon a divided highway need not stop upon meeting or passing a school bus which is positioned in the other roadway. The driver of a vehicle need not stop upon meeting or passing a school bus where traffic is controlled by a traffic officer.

      3.  Any person who violates any of the provisions of this section is guilty of a misdemeanor and:

      (a) For a third or any subsequent offense within 2 years after the most recent offense, shall be punished by a fine of not more than $1,000 and the driver’s license of the person must be suspended for not more than 1 year.

      (b) For a second offense within 1 year after the first offense, shall be punished by a fine of not less than $250 nor more than $500 and the driver’s license of the person must be suspended for 6 months.

      (c) For a first offense or any subsequent offense for which a punishment is not provided for in paragraph (a) or (b), shall be punished by a fine of not less than $250 nor more than $500.

      (Added to NRS by 1969, 1506; A 1975, 825; 1991, 276; 1997, 3060; 2007, 15) — (Substituted in revision for NRS 484.357) (emphasis added)

Why are the laws written in such obscure language? I could speculate, but that isn’t productive. Either way, I apologize on their behalf. You deserve better.

Let’s Unpack This Statute

Section 1 establishes that there are two conditions necessary to require you to stop:  1.) The school bus is stopped with its lights flashing (or stop sign out) and

2.) Children are entering or exiting the bus.

Neither element is sufficient on its own to require you to stop (as written). Both elements must be present, or you are free to drive along on your merry way.

Now, let’s take a look at that awkwardly constructed sentence in Section 2.  While driving in a “divided highway,” you “need not stop” if the stopped school bus is on the “other roadway,” or if a traffic officer controls traffic on the opposite side of the street.

So may you pass a stopped school bus on the other side of a median? It depends what they mean by “divided highway.”

Although not defined in Chapter 484B, Chapter 484A of the NRS applies to “Traffic Laws Generally.” From 484A, we have a definition of a “divided highway.” The term “means a highway divided into two or more roadways by means of a physical barrier or dividing section, constructed so as to impede the conflict of vehicular traffic traveling in opposite directions.”5)Cite

And there we have it. No need to stop if the stopped bus on the the opposite side of a “divided highway.” Aren’t you glad we checked?

There Are Many Prohibitions Regarding Driving in a School Zone: Get a Pen

Just don’t drive faster than 15 mph, right? I mean, that is a requirement, yes. But not even close to the only one. I have included all of NRS 484B.363 to make my point:

      NRS 484B.363  School zone or school crossing zone: Speed limit; designation; signs; U-turn and overtaking another vehicle prohibited; determination of hours in which speed limit is in effect; additional penalty if driver is proximate cause of collision with pedestrian or person riding bicycle.

      1.  A person shall not drive a motor vehicle at a speed in excess of 15 miles per hour in an area designated as a school zone except:

      (a) On a day on which school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone indicates that the speed limit is not in effect.

      2.  A person shall not drive a motor vehicle at a speed in excess of 25 miles per hour in an area designated as a school crossing zone except:

      (a) On a day on which school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone indicates that the speed limit is not in effect.

      3.  The driver of a vehicle shall not make a U-turn in an area designated as a school zone or school crossing zone except:

      (a) When there are no children present;

      (b) On a day on which school is not in session;

      (c) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (d) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (e) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone or school crossing zone indicates that the speed limit is not in effect.

      4.  The driver of a vehicle shall not overtake and pass another vehicle traveling in the same direction in an area designated as a school zone or school crossing zone except:

      (a) On a day on which the school is not in session;

      (b) During the period from a half hour after school is no longer in operation to a half hour before school is next in operation;

      (c) If the zone is designated by an operational speed limit beacon, during the hours when the pupils of the school are in class and the yellow lights of the speed limit beacon are not flashing in the manner which indicates that the speed limit is in effect; or

      (d) If the zone is not designated by an operational speed limit beacon, during the times when the sign designating the school zone or school crossing zone indicates that the speed limit is not in effect.

      5.  The governing body of a local government or the Department of Transportation shall designate school zones and school crossing zones. An area must not be designated as a school zone if imposing a speed limit of 15 miles per hour would be unsafe because of higher speed limits in adjoining areas.6)Dillon!

      6.  Each such governing body and the Department of Transportation shall provide signs to mark the beginning and end of each school zone and school crossing zone which it respectively designates. Each sign marking the beginning of such a zone must include a designation of the hours when the speed limit is in effect or that the speed limit is in effect when children are present.

      7.  With respect to each school zone and school crossing zone in a school district, the superintendent of the school district or his or her designee, in conjunction with the Department of Transportation and the governing body of the local government that designated the school zone or school crossing zone and after consulting with the principal of the school and the agency that is responsible for enforcing the speed limit in the zone, shall determine the times when the speed limit is in effect.

      8.  If, while violating any provision of subsections 1 to 4, inclusive, the driver of a motor vehicle is the proximate cause of a collision with a pedestrian or a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653.

      9.  As used in this section, “speed limit beacon” means a device which is used in conjunction with a sign and equipped with two or more yellow lights that flash alternately to indicate when the speed limit in a school zone or school crossing zone is in effect.

      (Added to NRS by 1985, 640; A 1993, 2586; 1999, 2674; 2011, 1635; 2015, 1574) — (Substituted in revision for NRS 484.366) (emphasis added)

When did you stop reading? After the first time you saw the term “speed limit beacon”7)Was there a contest at the legislature to come up with the most obscure term possible for school zone signs? Who even uses beacon in this context anymore?8)Want to try something fun, ask a millennial to use “beacon” in a sentence.

I don’t blame you. This stuff is nearly unintelligible.

We don’t let obscure language hold us down. Not now, not ever9)ok, possibly soon. Let’s summarize the law in language real people use:

  1. The speed limit in a school zone is 15 MPH, applicable additionally for the 30 minutes before/after school. The speed limit in a school crossing zone is 25 MPH. Neither are in effect on days that children are not in school. What’s the difference between a school zone and a school crossing zone? About 10 MPH, it seems. As you can see in Section 5, the state assigned school zone designations to the localities. You will want to check the signage around your neighborhood school. Don’t just assume you are in a school crossing zone! Especially if you are in Clark County (see below).
  2. If the school zone in question uses signs with the flashing yellow light (speed limit beacon), when the lights are off, you may drive the normal speed.
  3. If the school speed limit is in effect, then you are not permitted to make a U-turn nor pass another car in the school (crossing too) zone.
  4. Section 8 informs us that if you violate any of the above provisions, and there is an accident, you can be charged with Reckless Driving10)NRS 484B.653. I know you were driving carefully in school zones already because we care about the children of our community, but you don’t want a Reckless Driving charge filed against you for driving 30 MPH either.
For those of you living in Clark County, in reference to my first point above, there is Clark County Code that is applicable. I will reproduce the language so you can see wrote their laws differently:
14.24.030 – Prima facie speed limit.
 
The speed of any vehicle upon a street or highway within this county not in excess of the limits specified in this section or established in this title is lawful unless proved to be in violation of this chapter. The speed of any vehicle upon a street or highway in excess of the limits specified in this section or established in this title is prima facie unlawful. The prima facie limits referred to above are as follows:
 
(a) Fifteen miles per hour:
 
(1) When passing a school building or the grounds thereof adjacent to the street or highway while children are going to or leaving such school during school hours on days on which such school is in session. Such prima facie limit also shall apply when passing any school grounds which are not separated from the street or highway by a fence, gate or any other physical barrier, while such grounds are in use by children.
How’s your Latin? It’s a dead language only to those that don’t write about the law.. Prima facie translates to “at first impression.” In law, it’s often meant to convey “on its face.” Through all the obscure language here, all the County is saying is that the speed limit is 15 MPH in school zones where there is no signage indicating otherwise. The only school crossing zones in Clark County will be indicated as such11)Drive 15 MPH unless you see a sign that says you may go 25 MPH

I wish I could explain the Latin use.

Must You Yield to a Crossing Guard?

In short, yes. Let’s go right to the text of NRS 484B.350:

      NRS 484B.350  Stop required in obedience to direction or traffic-control signal of school crossing guard; penalty; additional penalty if driver is proximate cause of collision with pedestrian or person riding bicycle.

      1.  The driver of a vehicle:

      (a) Shall stop in obedience to the direction or traffic-control signal of a school crossing guard; and

      (b) Shall not proceed until the highway is clear of all persons, including, without limitation, the school crossing guard.

      2.  A person who violates subsection 1 is guilty of a misdemeanor.

      3.  If, while violating subsection 1, the driver of a motor vehicle is the proximate cause of a collision with a pedestrian or a person riding a bicycle, the driver is subject to the additional penalty set forth in subsection 4 of NRS 484B.653. (This is a the reckless driving statue. It includes terms for jail time.)

      4.  As used in this section, “school crossing guard” means a volunteer or paid employee of a local authority, local law enforcement agency or school district whose duties include assisting pupils to cross a highway.

      (Added to NRS by 2003, 364; A 2011, 1635) — (Substituted in revision for NRS 484.356) (emphasis added)

Now that’s what I call legislating! How refreshingly clear!

The driver “shall12)shall is not a suggestion stop” at the direction of the crossing guard.

You may not drive through the cross walk until all people, including the crossing guard, are clear of the highway. This does not mean after the group of people have walked past your car. I only emphasize this because I see people turning through walk signs all the time. Be aware of the requirements for school zones!

Below I included a two more school bus statues that you might find interesting. The first requires that state to have posted school zone signs13)relevant if you are pulled over for speeding and the second codifies that a school bus may not drive faster than 55 miles per hour14)an exception for when traveling on highways with a higher speed limit.

Have a great year of school everyone! Bless our wonderful teachers.

  NRS 484B.367  School zone or school crossing zone: Requirements for signs; placement of portable signs.

      1.  Each permanent sign which designates a school zone or school crossing zone and the speed limit in that zone must be uniform in size and color and must clearly designate the hours during which the speed limit applies.

      2.  Each portable sign designating a school zone or school crossing zone and the speed limit in the zone must be uniform in size and color. A portable sign may be placed on or beside a roadway only during those hours when pupils are arriving at and leaving regularly scheduled school sessions.

      (Added to NRS by 1985, 640; A 2001, 955; 2003, 365) — (Substituted in revision for NRS 484.3665)

      NRS 484B.360  Maximum speed of school bus.  A school bus shall not exceed:

      1.  A speed of 55 miles per hour when transporting pupils to and from school; or

      2.  The speed limit posted by a public authority for the portion of highway being traversed when transporting pupils to and from any activity which is properly a part of a school program.

      (Added to NRS by 1969, 1486; A 1973, 1297; 1977, 407; 2015, 1351) — (Substituted in revision for NRS 484.365)

If you are interested in further reading on Dillon Rule vs. Home Rule, I found this fun little ditty.

Footnotes   [ + ]

1. you all speak with impeccable grammar from what I hear
2. by no means a requirement! Rick Hasen is a great writer.
3. Small footnoted tangent: Have you seen (this is rhetorical, I know you’re busy) what the legislature did to our Dillon rule common law last session? First, I’ll define the terms. Justice Dillon (of Iowa) wrote a common law doctrine in the 19th Century adopted by Nevada courts. The Dillon Rule, as it’s known, states that localities do not have the authority to legislate unless said authority is expressly granted by the state government. Last legislative session, the state government made a significant amendment. Check out Section 5 of new bill: “As a general rule on local governmental power, Dillon’s Rule serves an important function in defining the powers of county government and remains a vital component of Nevada law. However, with regard to matters of local concern, a strict interpretation and application of Dillon’s Rule unnecessarily restricts a board of county commissioners from taking appropriate actions that are necessary or proper to address matters of local concern for the effective operation of county government and thereby impedes the board from responding to and serving the needs of local citizens diligently, decisively and effectively.”(emphasis added). If you, like me, are tired of the “tyranny of the north” as I like to call it, this is a great result! Clark County brings in almost all of the state’s revenue, and in turn, should be given the authority to pass the laws necessary to improve our lovely community without folks from Elko stopping us. This was impossible under the old Dillon Rule. Hope is on the way my friends..Hopefully my friends in Clark County realize what we have here..
4. After some cursory research, this may be the first time the Dillon Rule (in about 150 years) that it has been codified by a state. Pretty interesting in terms of history of law.
5. Cite
6. Dillon!
7. Was there a contest at the legislature to come up with the most obscure term possible for school zone signs? Who even uses beacon in this context anymore?
8. Want to try something fun, ask a millennial to use “beacon” in a sentence.
9. ok, possibly soon
10. NRS 484B.653
11. Drive 15 MPH unless you see a sign that says you may go 25 MPH
12. shall is not a suggestion
13. relevant if you are pulled over for speeding
14. an exception for when traveling on highways with a higher speed limit

An Emergency Bankruptcy Petition May Help You In a Pinch

Consider an Emergency Bankruptcy Petition if You Have Serious Trouble

Transcript:

Hi Matt McArthur, bankruptcy attorney at Clear Counsel Law Group.

Today I want to address a particular form that’s filed by the bankruptcy court when you file an emergency bankruptcy case.

Now there may be many reasons for filing an emergency case, which would include wage garnishments, repossessions, foreclosures, and what an emergency bankruptcy case allows you to do is file in a very quick time frame.

If you need immediate relief from the bankruptcy so that you can avoid a wage garnishment, repossession, or other type of collection, this gets you in the door and gets those protections in place.

Now because it’s an emergency petition, there’s not a lot of time to prepare the complete bankruptcy filing in your case.

The court allows you to file this emergency petition, which is going to include very basic information; your name, it’ll have your address, it’ll have your attorney’s information, it’ll have a list of creditors that the notice of bankruptcy gets mailed out to.

 

emergency bankruptcy petition, las vegas, nevada

 

That’s basically it.

It doesn’t dive into the details of what assets you have, what your current monthly income and expenses are, or the other financial statements that we have to submit to the court.

The court wants the rest of this information to be filed, because that’s what the law says has to be filed in order for a bankruptcy to be complete.

Where there’s an emergency petition filed, there’s a document sent out to individuals that’s called notice of incomplete and/or deficient filing.

It’s a very scary sounding document and that’s by design because if you don’t file the rest of the documents in your case, typically within a two week time frame, but there’s an automatic dismissal after 45 days, the court will automatically dismiss your case.

Which means your case is closed and you don’t get the relief that you’re looking for when you file for bankruptcy.

Now as long as you file the necessary documents within the needed time frame, there is no concern over this document and if you’ve filed an emergency petition with our firm and received one of these notices, it’s something that we’re expecting to be filed and sent to you.

All you need to make sure that you have done is scheduled an appointment with our firm to come back in and file the rest of your bankruptcy case within a short period of time.

We’ll be expecting you to do that, so that we can get a full bankruptcy case filed, get you right on track and get you that bankruptcy discharge in no time.

If you have any more questions about this, please give us a call and let us know. Otherwise I look forward to hearing from you soon. I’m Matt McArthur, a bankruptcy attorney at Clear Counsel Law Group.

 

What To Do If You Omitted Debt From Your Bankruptcy

The Effect of Omitted Debt on Your Bankruptcy

Transcript:

Hi, Matt McArthur, bankruptcy attorney, Clear Counsel Law Group.

Today, I want to talk about omitted debts on your bankruptcy paperwork.

By omitted debt, what I really mean, is that when we file your bankruptcy case we have to compile a list of your creditors.

We create this list with their names, their addresses, the amounts of the debt, if we have account numbers, and when the debt was created, or came into existence.

We list all of this information for the bankruptcy court. By an omitted debt we mean a debt or an amount owed to a creditor that wasn’t listed on this paperwork.

It was omitted. It was left off of the paperwork.

 

omitted debt, bankruptcy

 

Will an Omitted Debt Preclude You From Getting a Discharge?

What happens to these omitted debts?

If we’re in the middle of your bankruptcy case and your case is still pending, and we thought we got everybody at the beginning, but a bill came out of nowhere, or, you just remembered that old bill that you had before you moved states, and you wanted to make sure that they got included, it’s not too late.

If we’re in the middle of your bankruptcy case, the process involves amending the list that we’ve already created with the court, and so we provide that public notice, and we file that public document, and that public amendment, to your documents.

We also need to provide notice to the creditor that was omitted.

When we initially filed the list of your creditors, the bankruptcy court is going to mail out a notice of your bankruptcy to all of the listed creditors, and, because, this, particular creditor wasn’t on that list from the beginning, they didn’t receive that initial notice, so the two steps are making sure that the debt is listed in your bankruptcy forms and schedules, and, then, also, providing notice to the creditor, so that they know about their bankruptcy.

They can update their systems and they know to leave you alone.

It’s a fairly straight-forward process, but it’s something that needs to happen during the bankruptcy in order to make sure that we have it included and listed, and, it’s very clear that it was an included debt, and it’s included in the discharge.

If you have any concerns about what debts you owe, and whether or not we’ll be able to do anything about that, I have a little bit of more information to provide you, beyond the scope of this video, so, please come in and visit with me, consultations are free.

I look forward to hearing from you soon, and we can delve into how best to get all these creditors included in your bankruptcy.

 

Will Bankruptcy Help You With Post-Petition Debt?

(Editor’s note: Post-petition just means debt acquired after you filed for bankruptcy)

Be Careful Acquiring More Debt After Filing for Bankruptcy, a Discussion About Post-Petition Debt

Transcript:

Hi, Matt McArthur, bankruptcy attorney at Clear Counsel Law Group.

Today I want to talk about what types of debts can be wiped out in terms of when the debts are coming into existence. In other words, does the timing of when you got the debt affect whether or not we can wipe it out in bankruptcy.

We’re going to make the most basic breakdown of what types of debts are wiped out, and what types are not.

The Difference Between Post-Petition and Pre-Petition Debt

Generally speaking debts that existed when you filed bankruptcy can be wiped out, with certain exceptions of course.

Then debts that incurred or came into existence after you filed your case are not wiped out.

Those are never going to be able to be wiped out.

 

post-petition debt, nevada, bankruptcy

 

There’s no exception to that rule.

In other words, if you have what we call a post-petition debt, that means we filed your case, we submitted all the documents to the bankruptcy court.

That is the petition, that involves your petition and schedules, and so when we say post-petition, we mean after we turned in those papers.

Even if your bankruptcy case is still ongoing, it’s still pending, you still have to go to court, you’re still waiting for you discharge.

During the bankruptcy’s considered post-petition. A post-petition and after filing debt cannot be wiped out, ever. Most pre-petition debts can be wiped out with certain listed exceptions.

An Example of Post-Petition Debt

I want to give you an example of this. Let’s say you come in and you have $5,000 in medical debt that you want wiped out. When we submit your paperwork to the court, we’re going to have listed the $5,000 in medical debt that you owe at the time the paperwork is submitted.

Let’s say that the very next day, you unfortunately contract a deadly disease, and you have to go to the emergency room.

You have extensive medical treatment and services provided to you, and you rack up a huge bill.

In this unfortunate scenario, even though it’s one day after you filed your bankruptcy case, the new medical bills related from the treatment that was provided on that date, will not be able to be included in your bankruptcy case.

I hope this helps you understand the difference between pre-petition debt, and post-petition debt and just know that post-petition debt is not ever going to be wiped out so you want to be very careful with any new debt after you have filed for bankruptcy.

I’m Matt McArthur, hope to talk to you soon.

Do You Qualify for Chapter 7 Bankruptcy in Nevada?

I Can Tell You if You Qualify for a Chapter 7 Bankruptcy

 

Transcript:

Hi I’m Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Today I want to discuss whether or not a person can qualify for chapter seven bankruptcy.

There’s a couple different requirements that we need to make sure that we are satisfying before we indeed say that you are eligible for a chapter seven discharge.

Do You Qualify: You May Need to Wait if You Filed Before

The first is if you’ve ever filed bankruptcy before, you do have to wait between filing a chapter seven bankruptcy.

If the bankruptcy was successfully discharged, you have to wait eight years between filing a new chapter seven case. In other words, if you’ve filed before chapter seven it was successful, wiped out the debt, you need to look back and see if within the last eight years your first case was filed.

The other more common issue that we run into is whether or not an individual qualifies for chapter seven bankruptcy based upon income requirements.

 

qualify for chapter 7 bankruptcy

 

Do You Qualify: The Chapter 7 Means Test

In order to determine whether or not somebody files for chapter seven bankruptcy based upon income, we have to do something called the chapter seven means test. This determines whether or not you have the means on paper to payback your creditors.

There’s different factors that go into determine whether or not an individual satisfies the chapter seven means test. It’s primarily based upon an individual’s income. We look at how much income a person has made during the last six months.

We also take a look at what their household size is and what their income is in comparison to the median household income in the state of Nevada for their household size.

An individual filing by themselves is going to have a low median income typically than an individual with four people in their household.

You can have, you can earn more money in a household of four than you can in a household of one and still be able to qualify for chapter seven bankruptcy.

This can be an extremely complicated analysis and in order to determine whether or not you qualify for sure based upon income limits, we need to do an income analysis.

We need to look at your last six months of pay stubs and we can give you a clear answer of whether or not you’re going to qualify for chapter seven bankruptcy.

Please come in. Visit with me.

Our consultations are free here at Clear Counsel Law Group for bankruptcy.

I’d love to meet with you and discuss whether or not you qualify for chapter seven bankruptcy.

I look forward to hearing from you soon.

 

You Can Keep Your Retirement Account and File for Bankruptcy

 

 

What You Need to Know About Your Retirement Account and Bankruptcy

Transcript:

I’m Matt McArthur bankruptcy attorney at Clear Counsel Law Group. Today I want to address whether or not you’re able to keep your retirement account and file for chapter 7 bankruptcy.

As you know chapter 7 bankruptcy is a liquidation bankruptcy, meaning the court has the power to sell your assets that the law doesn’t allow you to protect.

I’m going to be addressing this from a Nevada law perspective, so if you’re filing bankruptcy in the state of Nevada and Nevada exemptions apply, this video will hold true to your situation.

Certain Retirement Accounts are Exempt

Generally speaking, we do have protections to protect retirement accounts whether it be a 401K, whether it’s an individual retirement accounts, or an IRA, or IRA, or 403B, or 457, or other types of qualified retirement account.

The law says that as long as it’s a qualified tax exempt retirement account, which all of those are, it will be exempt in the state of Nevada up to $500,000 of value.

It gives you a lot of wiggle room there. It’s with good reason that people are concerned about protecting their retirement account, this is your nest egg and you want to do everything in your power to protect.

You don’t want to jeopardize it by filing a bankruptcy and potentially lose it.

 

retirement account, bankruptcy

 

The good news is is Nevada has very generous exemptions for retirement accounts and in nearly all circumstances we’re able to protect that money that you’ve been so diligent in saving for your retirement in your golden years.

Your Retirement Account Needs to Keep its Tax Exempt Status

There are some circumstances where those types of accounts lose their tax exempt status, and if you’ve ever contributed more than the allowable amount per IRS standards and guidelines for your type of account in a given year then you may lose the tax exempt status for all of the money in the account and now the entire amount of the account is subject to liquidation.

This is a very bad scenario and something you want to avoid.

You would probably know if you’ve ever over contributed in a given year.

I’m sure the IRS would be asking for some tax dollars, so that would be a very good indication that you wouldn’t have a qualified tax exempt retirement account currently in place.

This can get a little complicated so I would love to sit down with you if you have any questions.

Please come in, do a free consultation with us, get the free advice, and I’ll give you very detailed, tailored information for your specific situation to help guide you through this very important issue.

I look forward to hearing from you soon. I’m Matt McArthur at Clear Counsel Law Group.

 

podcast hyperloop

Podcast Preview: Startup Troubles and the Hyperloop

Earlier this week, Greg Hamblin hosted one of our partners, Jordan Flake on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..In this episode, Greg asked Jordan to explain some of the events surrounding the Hyperloop lawsuit:

 

 

Greg Hamblin:   The hyperloop. This is a big deal here in Nevada. But it’s now much less likely to come to pass because of the co-founders doing what? It was just in the news. I don’t know if you saw. Well, you want to take a shot at it?

Brandon Trout:  I’m actually not sure. I’ll let you go.

Jordan Flake:      All right. Brannon has said a few times this morning, he said, “Hey, I actually read this one. I finally get to say, ‘Hey, I actually read this one.”

Greg Hamblin:   Did you? Oh, good.

Jordan Flake:      What happened was that, obviously, something like this, there’s an insane amount of money’s thrown at it right off the bat, because there’s so much research and development. It’s just going to require a ton of money.

Greg Hamblin:   And this is one of those Elon Musk related projects.

 

hyperloop

 

Jordan Flake:      It is. Yeah, yup, exactly. Elon Musk is basically very extended with this and some of his other projects, like Space X or whatever. It’s like, “Hey, we need these rockets. We’re not sure why, but we need them. It’s going to be great.” Hyperloop could be very very useful, but you have a situation where they figure that each mile of hyperloop is going to be estimated $10 million.

Greg Hamblin:   Holy cow.

Brandon Trout:  Wow.

Greg Hamblin:   It’s not going to be cheap to make this. The upfront kind of investment of cash is just huge. Then the potential for this to just change our society is huge too. I mean, it’s a huge upfront investment, but it’s also a really big power play on the back end because whoever basically controls the next mode of transportation, especially transportation … I hope everyone knows what a hyperloop, the theory behind it is, that you create essentially vacuums-

Greg Hamblin:   It’s a big tube, right?

Jordan Flake:      And magnets to reduce friction and have people go extremely quickly. Anyway, the point is, so much money thrown around that the co-founders of the company that is kind of trying to develop it really started fighting with each other.

Brandon Trout:           Right.

Greg Hamblin:   Particularly, one side of the company was accused of paying off wives and lovers in huge amounts of money.

Greg Hamblin:   Right. $40,000 a month for PR work paid to fiancée.

Jordan Flake:      Yeah, $40,000 a month, which really in the grand scheme of how much money is going into this wouldn’t seem like a lot, but it’s just very nepotism-

Brandon Trout:           That’s still a lot.

 

hyperloop

 

Greg Hamblin:   And abusive. The other co-founder makes this complaint and says, “Hey, this doesn’t fly and I’m going to raise all these issues and I’m going to file a lawsuit.” He comes into work and what should he find on his desk? Bonus question for the host.

Brandon Trout:  Is it oil?

Jordan Flake:      Oh, probably. That would have been good. A noose!

Jordan Flake:      Somebody had, not just somebody, but one of the other people involved, had been caught on video taking a noose and setting it on-

Greg Hamblin:   Putting it on his desk, like a threat.

Jordan Flake:      Of his new archenemy. So anyway.

Greg Hamblin:   This is the world of startups.

Jordan Flake:      Yeah, it is. And that’s the thing, it’s kind of surprising. It’s not like all the other startups in the world were clean. I mean, Facebook, Microsoft. All these startups that had these – Apple – that had this potential to change the world had an animosity and greed and intrigue.

Greg Hamblin:   I’m sure.

 

 

Nevada Advice for Folks with Out of State Wills

Out of State Wills in Nevada: What Happens Next?

Transcript:

Hello, my name is Jonathan Barlow, I’m a wills and probate attorney in Nevada, at Clear Counsel Law Group. Questions often come up, Nevada’s a melting-pot, especially Las Vegas, where it’s a melting-pot of sorts.

A lot of people come here to retire from other states in the United States. With that, they bring with them estate planning documents, particularly their will, that they did in another state.

They move here to Nevada and they have done their will in Ohio, or Montana, or California, some other state, move to Nevada, and they don’t do a new will in Nevada.

Questions often come up when mom or dad die as a Nevada resident with a California will, with a Texas will. “Is that out of state will still valid because mom was a Nevada resident and she doesn’t have a Nevada will?”

What do we do? Is the out of state will still valid?”

The basic answer is that if that will was valid in the state in which it was created, at the time it was created, Nevada will treat it and accept it as valid, even if the requirements under Texas law for a valid will are different than the requirements of a Nevada law for a valid will.

Let me give you some examples regarding out of state wills to flush this out a little bit and to make sense of what we’re talking about.

 

What is a Valid Will in Nevada?

Let me start with, what is a valid will in Nevada?

In Nevada, and we’re going to talk about typewritten wills, we’re not going to talk about handwritten wills, there’s different blog posts about that on our website. I encourage you to take a look at that for handwritten wills.

A typical typewritten will in Nevada has a few simple requirements. Obviously, the person creating the will has to sign the document, and they have to sign it in the presence of 2 witnesses.

We have to have 2 witnesses who also sign their names to the will, and those witnesses would be able and willing to sign a statement, which is usually incorporated into the will, could be done later.

They have to be able to say and testify that they witnessed the person signing the will, that in their opinion the person appeared to be of sound-mind, and that the person appeared to be of age of not under any undue influence.

The person needs to sign it, we need to have 2 witnesses who will say that the person met those legal standards of what’s called capacity, that they understood what they were doing, appeared to be of sound mind, and of age.

That’s a valid will under Nevada law.

 

out of state will, Nevada, probate

 

The Standard for Wills Differs Between States

The question comes up because other states don’t have the same requirements for a valid will.

Some states require a notary to sign the will, or to notarize the signatures on the will.

Nevada doesn’t require a notary even though sometimes we see notaries on Nevada wills, not required. Some states require only 1 witness to sign on the will.

Nevada requires 2.1)Please know that there can be serious risk if you do estate planning on your own. We have estate planning attorneys that can help you.

I often see wills done in Nevada, usually done by the person themselves, on a do-it-yourself type of document, where they get just 1 person to witness the will.

It’s not going to be valid under Nevada law if it was done in Nevada.

Other states allow that 1 witness to witness the will and have it be valid.

 

You are not Permitted to be a Beneficiary and a Witness

Let me tell you one other important thing that also happens under Nevada law.

Say we have those 2 witnesses who sign the will.

Let’s say that 1 of those witnesses is named as a beneficiary of the will, they’re named in the will to receive something.

They’re the son or the daughter of the person and they’re going to receive something from mom’s estate and they then also sign as a witness, or mom, or the person leaves, “$10,000 to my neighbor, Betty.”

Betty then witnesses the will.

Nevada law says that if you sign as a witness on the will your gift in the will is invalid.

The will itself is still valid, you can witness the will and make it a valid will, but your gift in the will is invalidated.

I’ve seen it happen many times, it’s very unfortunate when that happens. You have to be very careful about who you have as your witnesses.

One small caveat, if there are 3 witnesses and 1 of them has a gift, we’re still going to be okay because we have 2 other witnesses.

That’s rare when we see that.

 

How Nevada Courts Treat Out of State Wills

Okay, let’s say a Montana will has come in. I don’t know Montana law, but let’s say Montana says you can have just 1 witness on a will to make it a valid will.

Under Nevada law, that would not be valid.

Again, we’re going to examine Montana law and if, when mom signed that will in Montana 10 years ago, if it met the Montana requirements for a valid will, Nevada is going to treat it as a valid will and accept it as a valid will even though Nevada requires 2 witnesses.

How do we prove that? How do we show the court that this is a valid, out of state will? The practice of the courts, here especially in the Clark County and Las Vegas area, the practice of the courts has been to accept a letter of opinion, written by a Montana, or whatever state, by a licensed attorney in the other state, that says that they have reviewed the will and that the will complies with the requirements of that state for a valid will.

We take that letter of opinion, we present it to the court, and the court can rely on that opinion of validity to allow that out of state will to be accepted to probate.

Which means to accept it as a valid will here in the state of Nevada.

 

More May Be Required If the Out of State Will is Disputed

In disputed situations, that may not be sufficient, that letter of opinion from another attorney. The court will then take a look at that closer and make its own determination at that point.

It greases the wheels a little bit to get that letter of opinion from another attorney.

As long as there’s no disputes, Nevada will use that, rely on that letter, to accept that will done in another state with different requirements of validity, to accept it as a valid will in Nevada.

It’s a concept called, under the US constitution, full faith and credit, where other states give full faith and credit to the laws of other states and allows transactions to happen across the country, and honors the laws of the sister states in the United States.

If you have a concern about that, where mom or dad has moved to Las Vegas, and you’re wondering whether they need to re-do their will in Nevada, or mom or dad have passed away in Nevada and you know that they did a will in another state, give us a call here at Clear Counsel and we’ll be able to help you understand whether that will be treated as a valid will here in Nevada, or whether we’re going to be under a different situation.

We’ll help you walk through that situation, as we have done many times in these exact situations.

Look forward to talking to you and answering these questions.

Give us a call here at Clear Counsel Law Group and we’ll be glad to help you.

 

Footnotes   [ + ]

1. Please know that there can be serious risk if you do estate planning on your own. We have estate planning attorneys that can help you.
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